You are on page 1of 4

Legal research is an essential lawyering

The ability to conduct legal research is essential for lawyers, regardless of area or type of
practice. The most basic step in legal research is to find the leading case governing the issues in
question. As most researchers know, this is far more difficult than it sounds.

Often the issues are not correctly identified, or some issues are missed
altogether. Issue identification is crucial for effective research.

The law is constantly changing. Recent decisions of the Supreme Court of

Canada clearly show the fluidity of legal doctrine. Even where there is a recent
decision of the Supreme Court of Canada, split decisions of the court make it
difficult to determine how the next case will be decided.

In many areas there are conflicting decisions, or no binding authority. You

must then research the law of other jurisdictions, and apply creative analysis to
the existing case law or create an argument based on first principles.
Finding the law is an important part of legal research, but the ability to analyze what

you have found and reach a conclusion or formulate an argument based on it is just as essential.
Kunz and Schmedemann expressed this view in The Process of Legal Research (Boston: Little,
Brown and Company, 1989) at pages 6-7:
As a beginning researcher, one of the bigger mistakes you can make is to envision
legal research as a bibliographic checklist of sources to consult. Clearly you need to
be familiar with the various sources and their location in the library, but thats not
all. You also need to formulate research strategies that tell which source, of several
sources, you should consult. And your strategy should incorporate flexibility.
Successful researchers continually re-evaluate their research methodology and
consider alternative research approaches as they find that various sources or
research approaches are helpful or fruitless. Even more important, you also need to
learn how to advance your analysis of a law-related problem by means of your
research. Even the most diligent researcher, armed with the latest technology, will
not arrive at a successful result if he or she approaches legal research as a
mechanical process devoid of analysis. Thus, legal research is really just a portion of
legal problem-solving.

The Importance of Legal Research

Vol. 41 No. 8
ByShawn G. Nevers
I doubt Steven Spielberg thought anyone watching Lincoln would think about legal research, but
thats what happened to me. In one pivotal scene, Lincoln and his Cabinet gather to discuss the

proposed amendment abolishing slavery. Various Cabinet members are opposed to supporting an
amendment they see as unlikely to pass by the needed super-majority.
Lincoln, on the other hand, supports the amendment. He feels strongly that slavery must be
abolished, but, he worries that the Emancipation Proclamation is vulnerable. The Proclamation was
a war measure, he explains, but, without a war, questions about the legality of the Proclamation
and its effects will no doubt be raised. A constitutional amendment is the legal cure needed to
settle the uncertainty and end slavery for good.
As I listened to Lincoln explain his reasoning, I couldnt help but think about legal research. Lincoln
had found, understood, and applied the law. This process allowed him to correctly assess the legal
weaknesses of the Emancipation Proclamation. It also helped him realize that a constitutional
amendment was the best solution available. In that way, legal research played a critical role in
Lincolns decision to pursue the 13th Amendment despite heavy opposition.
While Lincolns legal research didnt include Westlaw or Lexis, its underlying principles of finding,
understanding, and applying the law remain the same today. Todays lawyers continue to use legal
research on a daily basis to prepare them to advise clients, negotiate with opposing counsel, or
persuade a judge or jury.
Youll experience the importance of legal research when a client seeks your help to modify a child
custody order, to sue for misappropriation of trade secrets, or to defend them in an insider trading
case. Legal research will help you find, understand, and apply the law. Performing good legal
research in this way will provide you with the foundation you need to proceed confidently and
achieve the best result for your client.
Despite the importance of legal research in legal practice, Im often surprised at how many firstyear law students (and sometimes others) seem disinterested in the topic. Maybe I shouldnt be
surprisedlegal research doesnt hold the appeal of some topics, like constitutional or criminal law.
Legal research also requires more hands-on work, which rarely evokes endearment from law
students. Many students even have the mistaken notion that legal research is easy.
But, whatever the reason for the initial lack of interest in legal research, something changes when
law students head out to legal jobs during the summer. Thats because theyre asked to research
again and again and again. In fact, the majority of law students I talk to spend the majority of
their summer researching.
So, while law students may or may not grow to love legal research, they do come to understand
that its a critical skill they must acquire. In fact, upon returning from the summer, many of my
former students remark that our legal research and writing class was by far the most helpful of
their first year. I always wish they would have realized this earlierand they do toobut better
late than never.
The sooner you gain an appreciation for the importance of legal research the better. Here are a few
tips that might help:
Take a broader view of research. Some students and even attorneys have a narrow view of
research. To them, research is Lexis or Westlaw. Good legal research, however, is much more than
a research system; its a process. Good legal research is intertwined with analysis, understanding,
and application. While finding the law is important, one has not truly found the law until he
understands it, as one prominent law librarian has noted. A research system cant do that for you.
A lawyers understanding and analysis of a case often begins in the research stage when she
identifies the relevant facts and determines the legal issues that must be researched. This analysis
continues and is refined as she decides where, how, and what to search. As she finds seemingly
relevant legal materials, she must understand them and how they apply to the facts of her case.
This research provides a crucial analytical foundation that will inform her decisions for the
remainder of the case. When viewed in this light, research can be seen not merely as a fleeting
Westlaw search, but as a critical, enduring component of representing a client.

Take research seriously. If youre serious about getting yourself ready to practice competently,
you need to be committed to developing your research skills. The first step is easydont blow off
your research classes. The more you put into these classes, the more youll get out of them.
Taking research seriously also means working on your research skills and knowledge outside a
structured class. I know that sounds crazy, but hear me out. The truth is that theres never enough
time in a legal research class to cover everythingthe intricacies of specialized areas, the latest
databases, etc. Its likely that your law library provides optional training sessions to help you learn
these things. You wont be able to attend them all, but go as often as you can. Westlaw, Lexis, and
others also provide training, as well as a number of online tutorials that can be helpful.
Your law library, as promoter of all things legal research, also likely has a blog, a Twitter account, a
Facebook page or [enter new tool here] that keeps students up to date on new databases or legal
research tips. Keep track of these sources, or some from another library, and youll be surprised
how much additional legal research knowledge you gain that will help you in school or at work.
Take advanced legal research. Most law schools offer some sort of advanced or specialized legal
research course as an elective. Take it! Take it even if you dont love legal research. Especially take
it if youre not good at legal research. You will soon be doing research on someone elses dime.
Why not get ready for it?
Most, if not all, advanced legal research classes are taught by law librarians. They are expert
researchers who know about the latest legal resources and can teach you a lot about the legal
research process. Youll also get the chance to do a lot of research, which is critical to becoming a
good researcher. If you dont practice researching now, youll be doing it at your job, which is
where youd be better off impressing than learning.
Abraham Lincolns quip about a book he read could easily be applied to legal researchPeople
who like this sort of thing will find this the sort of thing they like. The truth is, however, that
whether you like it or not, legal research is a critical part of lawyering. Dont underestimate its

The purpose of legal research is to find "authority" that will aid in finding a solution
to a legal problem. Primary authorities are the rules of law that are binding upon the
courts, government, and individuals. Examples are statutes, regulations, court
orders, and court decisions. They are generated by legislatures, courts, and
administrative agencies. Secondary authorities are commentaries on the law that do
not have binding effect but aid in explaining what the law is or should be. The
resources available to find legal authority are vast and complicated leading many
law schools to require students to take a class in legal research. See Legal education
Finding tools enable a researcher to find and interpret legal authority. Initially, many
researchers turn to tools that provide summaries of a particular area of the law.
Some examples are legal encyclopedias, treatises, and the American Law

Reports (ALR). Law reviews and legal periodical articles provide interpretation of the
law as well as detailed articles on particular legal topics. These interpretations may
be found through indexes such as the Index to Legal Periodicals. Restatements
provide detailed summaries of what the law generally is or what the restatement
writers believe the law should be. The citations to other authorities and annotations
provided in legal encyclopedias, treatises, American Law Reports, law reviews, and
legal periodicals are an important element of their value in the research process.
There are also a number of specialized finding tools that enable one to search for
relevant materials in primary authorities. The index volumes for statutes and
regulations compilations provide a quick guide to relevant rules and regulations.
There are also privately published version of statutes that are annotated. Case
reporters contain the decisions in cases that have been deemed important enough to
publish. Case digests enable a researcher to look up a particular area of the law and
find a list of case decisions that are "reported" in relevant case reporters. If one has
the common name of a law (e.g.,The Lanham Act), a popular name table can provide
a quick reference to where the law can be found in the statute compilation. There are
also conversion tables that allow one to link a statute to the bill from which it
developed and the commentary surrounding it's approval. Shepard's
Citations provides references to when cases and law review articles were cited by
another source.
Computer databanks have provided the legal profession with quick and efficient tools
to do research. LEXIS and WESTLAW, two prominent legal search engines, provide
databases that have case reporters, statutes, legal periodicals, law reviews and
various secondary authorities. State and specialty law collections pulling together
diverse types of authority are now appearing on CD-ROM and the Internet.